Bank of Iron River v. Board of School Directors

The first question is whether the assignment of the lumber claim and order carried also the remedy or right of action against the school board under sec. 3328, B. S. The argument against assignability is founded on Caldwell v. Lawrence, 10 Wis. 331, where it was held that the remedy of mechanic’s lien was not assignable. While the remedy here sought to be enforced is not strictly a lien, *599but rather in the nature of a garnishee proceeding (Klaus v. Green Bay, 34 Wis. 628), the fact is certainly entitled to some weight that the section giving the remedy is inserted in ch. 143 of the Revised Statutes, entitled “ Of Liens,” and that sec. 3316 of that chapter provides that “ all claims for liens . . . under this chapter ” shall be assignable. It is entirely certain from this that the legislature has changed the policy of the law as to the assignability of pure liens; and, while the section aforesaid does not strictly apply to the remedy given by sec. 3328, the fact is certainly of considerable force in considering the question of assignability of this claim against the school district. There seems no very good reason at present for holding that the assignment of the claim with the power and authority to collect it does not carry with it the remedy. The law is somewhat similar in its provisions to the law creating the liability of stockholders of railway corporations to laborers for work done for the corporation. Sec. 1169, R. S. Such claims were held assignable by this court in Day v. Vinson, 78 Wis. 198. The tendency of modern decisions is to facilitate, rather than to hamper, commercial and business dealings; and our conclusion is that the assignment of the claim with the power to collect it carried the remedy against the school district with it.

There were, then, two principal questions to be settled in the case: First. What amount was due Kelley from Towner dk Hooper at the time of the assignment of the account for lumber furnished for the construction of the school-house? Second. What amount was due from the school district to Towner <& Hooper on the building contract at the time of the commencement of the action ?

The first question involves another, namely, whether the $600 order was received as payment pro tanto of Kelley’s claim against Towner & Hooper. This order was not a negotiable bill of exchange, because it was not payable abso*600lutely, but out of a particular fund, and conditioned on the happening of an event which might never happen. Brill v. Hoile, 53 Wis. 537. It did not operate, therefore, prima faoie, as payment, nor did failure to present it or give notice of dishonor ipso faeto discharge the drawer, as would be the case were it negotiable paper. Mehlberg v. Tisher, 24 Wis. 607. There was, however, direct evidence that Kelley received the order as payment and in discharge pro tanto of Towner & Hooper. This it was competent for him to do, and the question whether he did so accept it should have been submitted to the jury. Such submission was requested by the defendants Towner do Hooper, but refused.

The question of the amount due from the school district to Towner <& Hooper was not submitted to the jury nor decided. The question submitted was, how much was due or has become due for work done before the commencement of the action, and in connection with this question the court emphasized the error by saying to the jury, in substance, that what became due shortly after the 27th of February (the date of the commencement of the action) might be included in the verdict. The statute simply provides for a recovery not greater than the amount due at the time of the commencement of the action, and it cannot be extended.

There was no apparent relevancy in the second question of the verdict.

For the errors above named a new trial must be had.

By the Ooiurt.— Judgment reversed, and action remanded for a new trial.